June 28, 2021 by
whatsapp and email
His Excellency Dr. Mohamed Irfaan Ali
President of the Cooperative Republic of Guyana
Office of the President
Shiv Chanderpaul Drive & South Road
Bourda, Georgetown, Guyana
Dear Excellency, President Ali,
RE: Your Excellency’s Attempt
to Suspend Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and Commissioners Mr.
Michael Somersall, CCH, DSM, JP, Mrs. Claire Alexis Jarvis, Mrs. Vesta Adams and
Mr. Clinton Andrew Conway of the Police Service Commission
I write
on behalf of my clients Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and
Commissioners Mr. Michael Somersall, CCH, DSM, JP, Mrs. Claire Alexis Jarvis, Mrs.
Vesta Adams, and Mr. Clinton Andrew Conway of the Police Service Commission (“the
Commission”) in response to your letters to each of the aforementioned dated
June 16, 2021.
In each
of your letters, Your Excellency states that you have been advised by Prime
Minister The Honourable Mark Anthony Phillips, MSS, to initiate an
investigation into the question of the Commission members’ removal from office,
and to suspend them “from performing the functions of that office with
immediate effect pending those investigations.” You attach two letters from the
Prime Minister, both dated June 15, 2021, reiterating the allegations contained
in the Show Cause Notices of May 19, 2021 and June 1, 2021 and containing the aforementioned
advice.
You further
state in your letters to the members of the Commission that you have accepted
the Prime Minister’s advice “and shall establish a tribunal in the manner
prescribed by Article 225”[1]
to inquire and report on the matter of the proposed removal, and that the
members of the Commission “are hereby suspended with immediate effect from
performing the functions of [office] pending the establishment of the
aforementioned tribunal.”
You have
also been publicly quoted as saying “I’m following the Constitutional process
that is outlined in dealing with these matters, and that’s all I am doing. I
have no intention of breaching the Constitutional process. There is a
Constitutional process in which to deal with all these allegations that have
been made against members of the Commission and that is what has been
triggered, nothing more than that…”[2]
For the
reasons that follow, I have advised the members of the Commission that the
purported suspensions asserted by Your Excellency in these letters are
manifestly ultra vires Article 225 of the
Constitution, unlawful, illegal, premature and of no legal force,
import or effect. I could come to no other
conclusion having regard to the relevant provisions, and in particular Articles
225(6) and 210(3).
The
Purported Suspensions of the Commission Members are Ultra Vires the
Constitution
As you
are aware, and as I have stated in our submissions in response to the various
Show Cause Notices of May 19, 2021 and June 1, 2021, suspension and removal
from office at a Constitutional Commission are regulated by Article 225 of the
Constitution, of which paragraph (1) states, “a person holding such office… shall not be removed therefrom or
suspended from the exercise of the functions thereof except in accordance with
the provisions of this article.” [3]
[4] [5]
Suspensions under Article 225 are controlled by paragraph (6), which
reads in full:
(6) If the question of removing the officer from
office has been referred to a tribunal under this article, the President,
acting in accordance with the advice of the prescribed authority, may
suspend the officer from performing the functions of his office, and any such
suspension may at any time be revoked by the President, acting in accordance
with such advice as aforesaid, and shall in any case cease to have effect if the
tribunal recommends to the President that the officer should not be removed
from office.
In accordance with this
paragraph, while you can in certain circumstances suspend members of the
Commission, you may only do so “with the advice of the prescribed authority”,
and only if the question of removal “has been referred to a tribunal.”
As to who “the
prescribed authority” empowered to recommend suspension is for each of the
members of the Commission, I refer you to Article 210(3) of the Constitution,
which deals with the Police Service Commission specifically and states:
(3) The provisions of article 225 (which relate to
removal from office) shall apply to the office of an appointed member of the
Police Service Commission. In the case of an appointed member other than the
Chairman, the prescribed authority for the purposes of paragraph (4) of that
article shall be the Prime Minister or the Chairman and for the purposes of
paragraph (6) of that article shall be the Chairman. In the case of the Chairman
the prescribed authority for the purposes of paragraphs (4) and (6) of article
225 shall be the Prime Minister.
It is clear from the above provisions that Your Excellency’s purported suspension
of the Chairman and other members of the Commission is contrary to the Constitution
in two respects: first, because the question of removal from office has not yet
been “been referred to a tribunal”; and second, because, for all members other
than the Chairman, you have not acted “in accordance with the advice of the
prescribed authority” with respect to the suspensions.
The Suspensions Are Premature
Regarding the first issue of referral to a tribunal, Article 225(6)
clearly states that suspension is only an option once “the question of removing
the officer from office has been referred to a tribunal under this article.”
However, Your Excellency purports in your letter to suspend the members of the
Commission “pending the establishment of the aforementioned tribunal” and states
that you “shall establish a tribunal in the manner prescribed by Article 225.”
Respectfully, Your Excellency has no such power. Clearly, one cannot
refer a question to a tribunal that does not yet exist. The proposed
suspensions of the members of the Commission are therefore all premature, null,
void and ultra vires Article 225.
It must
also be noted that paragraph (4) of Article 225 dictates the process for
appointing the tribunal to inquire into a proposed removal from office. This
paragraph requires you to “act in accordance with the advice of the Judicial
Service Commission, in appointing a tribunal which shall consist of a Chairman
and not less than two other members, selected by the Judicial Service
Commission from among persons who hold or have held office as a judge….”
At
present, there is no Judicial Service Commission, with the last such Commission
having come to an end in 2017. Accordingly, in order for Your Excellency to
appoint a tribunal to whom you may refer the question of removal, as required
by Article 225(4) and (6), a Judicial Service Commission should be constituted.
I
attach, for your reference by way of precedent, a record of the last
“Appointment of a Tribunal Under Article 225(4) of the Constitution of the Cooperative
Republic of Guyana”, published in the Official Gazette of September 17, 2016
and concerning Mr. Carvil Duncan, then Chairman of the Public Service
Commission, member of the Judicial Service Commission and member of the Police
Service Commission. That tribunal was appointed “To inquire, investigate and
recommend to the President whether [Mr. Duncan] ought to be removed from office”
in accordance with Article 225(2).
That
order by the President’s Command included the specific allegations against Mr.
Duncan, the members of the tribunal and the specific mandate of the tribunal,
including the required report and advice and timeline for the investigation.
Only thus may such a matter be properly “referred to a tribunal” in
satisfaction of Article 225(6).
As you
will be aware, Mr. Duncan subsequently challenged the establishment of that
tribunal as premature and prejudicial, and in October 2016, was successful in
having the work of the tribunal suspended on procedural and substantive
grounds.[6]
Mr. Duncan was represented in that matter by the current Attorney General, Mr.
Anil Nandlall.
The
suspensions referred to in Your Excellency’s letters, being ordered before the
referral of the removal question to a tribunal, which indeed does not exist
(and cannot exist in the absence of a duly appointed and functioning Judicial
Services Commission), are without lawful authority and of no force or effect.
You
Have Not Acted “In Accordance with the Advice of the Prescribed
Authority”
The
second reason why the Constitution cannot countenance the purported suspensions
of the members of the Commission is that Your Excellency has not acted “in accordance with the advice of the prescribed authority” as
required by Article 225(6), except in the proposed suspension of Chairman Paul
Slowe.
As indicated above, under Articles 225(6) and 210(3) jointly, the Prime
Minister may advise the President to suspend the Chairman of the Commission,
but not to suspend the other members. Rather, for the President to suspend these
other members, the “prescribed authority” who must so advise him is the
Chairman himself, while the Prime Minister can only advise the President with
respect to these other members under paragraph (4) (appointment of a tribunal),
not paragraph (6) (suspension of officers).
The Chairman, Mr. Paul Slowe, has not advised Your Excellency to suspend
the other members of the Commission. These suspensions are therefore contrary
to Article 225 and of no lawful force and/or effect, even if the removal
question had been referred to a tribunal.
Summing Up and Conclusion
For the reasons set out above, it is clear that Your Excellency has not
acted in accordance with Article 225, which is the only lawful means for
suspending a member of a Constitutional Commission. In consequence, the
purported suspensions of the Chairman and other members of the Commission are ultra vires the constitution, unlawful, illegal,
premature and of no legal force, import or effect.
In other words, the members of the Commission have not been lawfully
suspended from performing the functions of their offices and may therefore
continue to do so. They have advised me that they intend to remain in office
until such time as their terms are over or they are lawfully suspended
or removed from office following referral of the question to a duly appointed
tribunal.
Having regard to the unconstitutional and illegal suspensions discussed
above, Article 227 provides:
226. (1) Save as otherwise provided
in this Constitution, in the exercise of its functions under this Constitution
a Commission shall not be subject to the direction or control of any other
person or authority.
(2) Subject to affirmative
resolution of the National Assembly, a commission shall make rules, relating to
the procedure of the commission; and until such rules are made, the commission
shall regulate its own procedure.
(3) A Commission may, subject to the
next following paragraph, act notwithstanding any vacancy in its membership or
the absence of any member and its proceedings shall not be invalidated by the
presence or participation of any person not entitled to be present at or to
participate in those proceedings.
The Police Service Commission will therefore continue to perform its constitutional
mandate in respect to discipline and promotion of Guyana Police Force Officers
from Inspectors to Assistant Commissioners.
If Your Excellency is not in agreement with the above, it is your
prerogative to refer the matter to the courts for determination. The members of
the Commission are confident that, should you do so, any court will arrive at
the inevitable conclusion that Article 225 does not enable you to suspend the
members in the manner that you have purported to do.
Moreover, it must be noted that, should the matter be referred to a
court, the various issues of procedural fairness, independence of
Commissions under Article 226 of the Constitution, insulation of Commissions in
accordance with Endell Thomas v Attorney General (Trinidad & Tobago),[7]
and the fundamental Constitutional rights of freedom of association (Article
147(1)) and the presumption of innocence (144(1)), must also inform the court’s
determination. By necessity, the court will consider the question of
suspension in its full factual context, including the history of
inappropriate, unconstitutional political interference by Your Excellency’s
administration, outlined in detail in Mr. Slowe’s submissions dated May 31,
2021 and beginning with the attempt by Your Excellency to pressure the Commission
to promote certain ineligible ranks friendly to the current government. [8]
[9]
To the extent that Your Excellency’s attempt to suspend the members of
the Commission is related to the upcoming decision of High Court Chief Justice George,
anticipated June 18, 2021 (now postponed to June 28, 2021), in the application
of Senior Superintendent Calvin Brutus and other senior police officers, it
represents yet another attempt at inappropriate and unconstitutional political
interference with the apparent goal of seizing control of promotions within the
Guyana Police Force, a matter that is properly within the exclusive control of
the Commission.
With respect to this latest assault on the Commission and its
independence, I refer you to the words of the current Attorney General, Mr.
Nandlall, in an article he published on October 16, 2016 with regard to the
aforementioned investigation into Mr. Carvil Duncan and the alleged attempts by
then President Granger to circumvent Article 225:
In short, the President has flagrantly violated
the letter, spirit and intent of some of the most sacrosanct constitutional
provisions and indeed his actions strike at the very heart of our
constitutional democracy. Presidents (or Prime Ministers, as the case may be)
have been impeached for far less in democratic countries.[10]
Fortunately, the Constitution provides clear and unambiguous protection
against interference of this kind with respect to suspensions from office at
Constitutional Commissions.
The members of the Commission will continue to do their important work
until their terms end on August 09, 2021.
In the meantime, please contact me directly in the event you would like
to discuss the above or any collateral matters.
Yours truly,
Selwyn A. Pieters, B.A., LL.B.,
L.E.C.
Lawyer & Notary Public
Attorney-at-Law
Of the Bars of Guyana,
Trinidad and Tobago and Ontario
(Canada)
cc Clients
Attorney General and Minister of Legal
Affairs
Prime Minister of Guyana
Secretary, Police Service Commission
Legal Officer, Public/Police Service
Commission
Commissioner of Police
[1]
Constitution of the Cooperative Republic of Guyana, Chapter 1:01, Laws
of Guyana.
[2]
President defends decision to suspend entire Police Service Commission, (June
18, 2021) Online: News Source Guyana <https://newssourcegy.com/news/president-defends-decision-to-suspend-entire-police-service-commission/>
[3]
See the Submissions of Paul Esmond Slowe, dated May 31, 2021, in response to
the May 19, 2021 Show Cause Notice.
[4]
See the Submissions of Clinton Andrew Conway, dated May 31, 2021, in response
to the May 19, 2021 Show Cause Notice.
[5]
See Joint Submissions of Mr. Paul Esmond Slowe, CCH, DSM, JP, Chairman, and
Commissioners Michael Somersall, DSM, Clinton Andrew Conway, Claire Alexis
Jarvis, and Vesta Adams of the Police Service Commission (“the Commission”),
dated June 08, 2021, in respect to the Show Cause Notice letters of June 1,
2021.
[6]
Denis Chabrol, “Carvil Duncan blocks Tribunal from proceeding with removal
hearing” (October 20, 2016), online: Demerara Waves <https://demerarawaves.com/2016/10/20/carvil-duncan-blocks-tribunal-from-proceeding-with-removal-hearing>
[7]
[1981] UKPC 28.
[8]
Affidavit of Paul Esmond Slowe, affirmed May 28, 2021, [“Slowe Affidavit”]
[9]
Affidavit of Paul Esmond Slowe, affirmed June 7, 2021, [“Slowe Second Affidavit”]
[10]
Anil Nandlall, “President violated constitutional provisions in moving against
Carvil Duncan” (October 15, 2016), online: Stabroek News <https://www.stabroeknews.com/2016/10/15/opinion/letters/president-violated-constitutional-provisions-moving-carvil-duncan/>.
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